Jurors Can't Be Excused for Being Gay: 9th Circuit

By Brett Snider, Esq. on January 22, 2014 | Last updated on March 21, 2019

A federal appellate court affirmed Tuesday what many advocates have argued for decades: jurors cannot be kicked off a jury simply for being gay.

Lawyers are prohibited from excusing jurors based on race and gender, but the 9th U.S. Circuit Court of Appeals held that removing a juror based on his sexual orientation was unconstitutional, reports the San Jose Mercury News.

What does this new ruling mean for the protected status of gays and lesbians?

No Peremptory Challenges Based on Sexual Orientation

In civil and criminal trials, all parties in a case are allowed to eliminate a limited number of potential jurors for any non-discriminatory reason during voir dire.

"Non-discriminatory" means potential jurors cannot be eliminated because of their race, as the U.S. Supreme Court held in Batson v. Kentucky in 1986. In 1994, the Supreme Court ruled that the same goes for eliminating members of the jury pool based on gender.

If either side's attorney in a voir dire believes that the other party is discriminating based on gender or race in eliminating jurors, he or she can raise what's called a Batson challenge. But the 9th Circuit is now saying that this Batson challenge can also be raised if a juror is believed to have been eliminated based on sexual orientation.

The case at issue involved overpricing of HIV medications. During jury selection, lawyers for pharmaceutical corporation Abbott Laboratories excused a gay male prospective juror -- allegedly because the price hike on HIV drugs was a point of contention in the gay community, reports the Mercury News. The 9th Circuit ruled that using peremptory challenges to eliminate gay jurors was unconstitutional.

Do Gays Get Heightened Scrutiny Now?

Applying Batson to gays and lesbians is new for federal courts, but the state courts have prohibited excluding gays from juries for more than a decade.

Part of the difference has been the reluctance of the U.S. Supreme Court -- or other lower federal courts -- to apply any level of heightened scrutiny to sexual orientation. Justice Anthony Kennedy wrote in flowery prose of the dignity and destiny of gays in the Windsor case last year, but he neglected to actually apply a heightened level of scrutiny to laws which affect them.

The 9th Circuit did not allow any room for misinterpretation in this case, and stated unequivocally that sexual orientation is subject to heightened scrutiny. This may mean big things for future constitutional challenges based on sexual orientation; absent any U.S. Supreme Court direction, this heightened scrutiny may be used in gay marriage challenges nationwide.

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